Vancouver Sun

Monday, December 16, 2002

Divorce law changes good for the children

Vancouver Sun

For far too long, family law legislation has perpetuated a battle of the sexes, a war between mothers and fathers.

So in unveiling long-awaited changes to the Divorce Act, Justice Minister Martin Cauchon said he wanted to return family law to its core value -- the best interests of the child -- by making parenting after divorce less of a battle and less about mothers and fathers.

To that end, he also made the law a little less law-like. The changes largely remove family law from the adversarial rubric that governs so much of Canadian law.

The new family law will replace the terms "custody" and "access" -- loaded words that often connote winners and losers in the competitive arena of divorce court -- with a parental responsibilities framework. It will allow parents, not the court, to figure out how to carry out their responsibilities to their children. Mediators, counsellors and lawyers will be able to assist if they can't come to an agreement, and judges will issue parenting orders only if mediation fails.

That's a welcome change. Although the adversarial system generally works well in a criminal context, it's designed largely to protect the rights of the defendants. That design might also work in a battle of the sexes, but not when the the best interests of children are at issue.

Despite Mr. Cauchon's best efforts, critics have been hitting him from all sides. While women's groups urged the government to make no changes to the custody and access regime, fathers' rights organizations campaigned tirelessly -- but unsuccessfully -- for the inclusion of a presumption in the law that each parent has equal access to children.

While that sounds like an invitation to emphasize the parents' rather than the child's rights, there's little doubt that children benefit most when they have frequent and liberal access to both of their parents.

Nevertheless, as each family is different, the inclusion of rigid legalistic presumptions could well deny the process the flexibility it needs to ensure the best interests of the children are met.

Fathers' rights groups lobbied for the presumption because of the widely held perception that courts are inherently gender biased: Judges award sole custody to mothers in more than 50 per cent of cases, and to fathers in less than 10 per cent (joint custody makes up the remainder.)

This is not the place to explain those statistics, but a few comments are in order.

The lopsided custody awards are, in part, a product of the fact that mothers are usually the primary caregivers of children before divorce, and judges are unlikely to change the arrangement.

Nevertheless, the perception of gender bias is disquieting. Although the Supreme Court of Canada has condemned the "tender years doctrine" -- the belief that young children are better off with their mothers -- many lawyers and litigants believe judges continue to be guided by it.

That's why it's crucial that the new family strategy emphasize not just legislation, but also education. Mr. Cauchon has, in fact, earmarked nearly $48 million of the planned $63-million program for family law research and to educate lawyers about the new strategy.

Although critics have taken the government to task for that expenditure, education is indispensable for changing the attitude of lawyers. Many view themselves as gladiators -- hired guns with a winner-take-all attitude that's inculcated in law school and reinforced by the adversarial system.

Perhaps even more importantly, the government ought to emphasize the education of judges, who, ultimately, must make the hard decisions. Judges need to be reminded that family law works best without presumptions, and that goes for the tender years doctrine as well as the presumption of equal access.

Fortunately, the new family strategy includes the use of judges who are experts in family law and calls for the hiring of additional judges.

That makes good sense. Because for Mr. Cauchon's reforms to work, everyone -- from judges and lawyers, to mothers and fathers -- must recognize that parents should be fighting for their children, not over them.

© Copyright 2002 Vancouver Sun